by Richard Alderman
For several decades, alternative dispute resolution (ADR) has been viewed as the savior of the American civil justice system. ADR is viewed as providing a voluntary, cheaper, quicker, and more efficient alternative to our slow, expensive justice system.
Like most, I support the notion of ADR. How can anyone argue with an alternative system that is cheaper, quicker and more efficient? I have long had problems, however, with what currently passes for ADR. Arbitration, especially in the context of consumers, is fast becoming the norm, rather than an alternative, and it is anything but voluntary or cheaper, not to mention the problems of unfairness and the elimination of precedent and stare decisis. Mediation, while better in theory, is often used only late in the civil justice process and simply adds another expense and formal process. When I graduated from law school, we were told most cases settle “on the courthouse steps.” Today, students are told they settle in formal mediation, and that your client must pay the fees of the mediator.
This is not to say I don’t support an alternative way of resolving disputes. In fact, I think arbitration, when truly voluntarily agreed to, can be an excellent forum, and mediation, if pursed early in the litigation process, can often result in a prompt settlement, without much of the cost and hostility of litigation.
Perhaps we should be thinking outside of the box when it comes to consumer ADR. For example, how about compulsory mediation held promptly after the dispute arises, allowing the parties to try to work out their differences? What about allowing the parties to make a post-dispute decision to utilize an informal consumer court that conducts hearings in the evening or on the weekend, and promptly issues a binding judgment for parties who agreed to use it? Could we create a less expensive, truly voluntary, form of arbitration? Or, maybe trade associations could form tribunals to resolve disputes, settling claims through a common fund. Like worker’s compensation, members’ fees could be based on the past history of complaints. Finally, how about authorizing designated consumer organizations to act as “private attorney generals,” and maintain litigation on behalf of aggrieved consumers, limiting relief to restitution or repair?
Alternatives to our current form of ADR do exist, and should be considered. Can they work? To see a truly innovative way of dispute resolution, take a look at the Tokyo Tuna Court, discussed in Eric Feldman’s article, The Tuna Court: Law and Norms in the World's Premier Fish Market, 94 Cal. L. Rev. 313 (2006) (describing how "Tokyo's tuna merchants make use of a highly specialized court created by the state--the Tuna Court--that follows formal rules and procedures that are contained in a government ordinance. The supposed disadvantages of legal rules are nowhere apparent. The Tuna Court is fast and inexpensive, and the process of articulating and resolving claims serves to strengthen individual relations and the cohesion of the market community.").